(SCOT. LAW COM. No. 76)

FAMILY LAW

REPORT ON OUTDATED RULES IN THE LAW OF HUSBAND AND WIFE

Laid before Parliament by the Lord under section 3(2)of the Law CommissionsAct 1965

Ordered by The House of Commons to be printed 11th May, 1983

EDINBURGH HER MAJESTY'S STATIONERY OFFICE i4.65 The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law of . The Commissioners are: The Honourable Lord Maxwell, Chairman, Mr. R. D. D. Bertram, W.S., Dr. E. M. Clive, Mr. J. Murray, Q.C., C. G. B. Nicholson, Q.C. The Secretary of the Commission is Mr. R. Eadie. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

ISBN 0 10 233083 2 SCOTTISH LAW COMMISSION

Item 14 of the Second Programme

FAMILY LAW

REPORT ON OUTDATED RULES IN THE LAW OF HUSBAND AND WIFE

To: The Right Honourable the Lord Mackay of Clashfern, Q.C., Her Majesty's Advocate

We have the honour to submit our Report on Outdated Rules in the Law of Husband and Wife

(Signed) PETER MAXWELL, Chairman R. D. D. BERTRAM E. M. CLIVE JOHN MURRAY GORDON NICHOLSON

R. EADIE, Secretary llth February 1983

CONTENTS

Part Paragraph Page I INTRODUCTION . . 1.1 1

ENGAGEMENTS TO MARRY . 1 Actions for breach of promise of marriage . . 2.1 1 Present law . . 2.1 1 Criticisms of present law . . 2.4 2 Options for reform . . 2.8 3 Recommendation . . 2.11 4 Property disputes on termination of engagement . 2.13 5

ACTIONS OF ADHERENCE . 6 Introduction . . 3.1 6 Present law . 3.2 7 Criticisms of present law . . 3.4 7 Recommendation . 3.6 8

ACTIONS OF ENTICEMENT OF A SPOUSE . 4.1 8

CURATORY OF MARRIED MINORS . 9 Present law . 5.1 9 Criticisms of present law . . 5.3 10 Options for reform . . 5.4 10 Recommendation . 5.5 10

HUSBAND'S RIGHT TO CHOOSE PLACE OF MATRIMONIAL HOME . 11 Present law . 6.1 11 Criticisms of present law . . 6.2 11 Options for reform . . 6.3 11 Recommendation . 6.4 12

ANTENUPTIAL MARRIAGE CONTRACTS . 12 Introduction . . 7.1 12 Wife's power to create alimentary liferent in her own favour . Present law . Criticisms of present law . Recommendation . Marriage as onerous consideration for provisions in marriage contract . Present law . Criticisms of present law . Recommendation . Part Paragraph Page V111 HUSBAND'S REMAINING LIABILITY FOR WIF'E'S ANTENUPTIAL DEBTS . 15 Present law . 8.1 15 Criticisms of present law . . 8.2 15 Recommendation . 8.3 16

IX PRESUMPTION THAT WIFE IS HUSBAND'S DOMESTIC MANAGER Present law . 9.1 16 Criticisms of present law . . 9.7 18 Options for reform . . 9.10 19 Recommendation . 9.11 20

X HUSBAND'S LIABILITY FOR EXPENSES OF LITIGATION BY WIFE AGAINST THIRD PARTY Present law . 10.1 20 Criticisms of present law . . 10.2 21 Recommendation . 10.3 2l

XI PROTECTION ORDERS UNDER THE CONJUGAL RIGHTS (SCOTLAND) AMENDMENT ACT 1861 . 22 Present law . 11.1 22 Criticisms of present law . . 11.4 23 Recommendation . 11.5 23

XI1 SUMMARY OF RECOMMENDATIONS 23

Appendix A Draft Law Reform (Husband and Wife) (Scotland) Bill with explanatory notes . 25

Appendix B Excerpt from Scottish Law Commission, Report on Liability for Adultery and Enticement of a Spouse (Scot. Law Com. No. 42, 1976) 52

Appendix C List of those who submitted written comments on Consultative Memorandum No. 54 . 54 PART I INTRODUCTION

1.1 In this Report, prepared as part of our family law programme,' we make recommendations for reform of certain aspects of the law of Scotland on husband and wife. Some of these recommendations are for the abolition of rules which may have had a useful function in the middle of the nineteenth century but which are inconsistent with the legal and social position of married women today. Some would remove rules which discriminate against women, or men, on grounds of sex. In this connection we note that the General Assembly of the United Nations, on 18December 1979, adopted a Convention on the elimination of all forms of discrimination against women. The Convention, which was opened for signature on 1 March 1980, has been signed2but not yet ratified by the . Part IV of the Convention deals with legal discrimination against women and is relevant to several of the matters discussed in this Report. Implementation of the recommendations in this Report would remove certain inconsistencies between and the terms of Part IV of the Convention. 1.2 In accordance with our usual practice, we published a Consultative Memorandum3 on the matters dealt with in this Report and invited comments on provisional proposals for reform. Most of the proposals received almost unanimous support although, as we note later, there was a division of opinion on one or two issues. We are grateful to all those who submitted comment^.^

PART I1 ENGAGEMENTS TO MARRY

Actions for breach of promise of marriage Present la W 2.1 It is competent in Scots law to raise an action for damages for breach of promise of marriage where one of the parties to an engagement "wrongfullyn5 fails to implement his promise to marry the other. Originally, the action permitted a party to recover only pecuniary 10~s.~However, in the early part of the nineteenth century, the courts extended the law and held that damages could include solatium for injury to the pursuer's feeling^.^ At this time, it was thought that a person's standing and reputation in the community could suffer because of a broken engagement. Indeed, it was thought that a broken engagement could lead to a diminished chance of marriage and claims based on this "loss of market" were also allowed. As Lord Meadowbank put it in Hogg v. GoW: "Her heart is used; it is worn; she is less attractive to others."'

'See our Second Programme of Law Reform (Scot. Law Com. No. 8,1968), Item 14. 20n22 July 1981. 'Consultative Memorandum No. 54, Some Obsolete and Discriminatory Rules in the Law of Husband and Wife (1982). 4Alist of those who submitted written comments on the Consultative Memorandum is contained in Appendix C. %ee Tucker v. Aitchison (1846)9D. 21. The courts have never compelled a person to implement his promise: see e.g. Hogg v. Cow May 27,1812, F.C. per Lord Meadowbank at 658. hJohnstonv. Paisley (1770) Mor. 13916. 'Hogg v. Cow May 27, 1812,F.C. $Ibid., at 657. There is little modern authority on actions for breach of promise of marriage and it is not clear how claims based on "loss of market" would fare today. It seems clear, however, that damages may be recovered not only for actual pecuniary loss incurred in contemplation of the marriage' but also for loss of the financial benefits which would have resulted from the marriage2 and for distress and injury tofeeling^.^ 2.2 The action is competent at the instance of either party, although actions by male pursuers have been rare and not conspicuously successful. In Longmore v. Ma~sie,~ for instance, a man sued a married woman for g500 for breach of promise. He was awarded one shilling and no expenses. Legal aid is not available for an action for breach of promise.' 2.3 Liability for breach will arise only where the defender "~rongfully"~ failed to implement his promise and so the defender may plead that he or she was justified in breaking off the engagement. What will amount to justification is a question of fact to be decided in the circumstances of each case. It has been held, for example, that the discovery by a man that his fiancee had given birth to an illegitimate child some years before justified him in breaking off the engagement.7 In Liddell v. Easton's Trs. the man had postponed the marriage because of a well-founded fear about his own mental health. It was held that a reasonable postponement did not amount to breach but the view was also expressed that in any event a breach would have been ju~tified.~

Criticisms of present law 2.4 The present law probably does not reflect modern attitudes. An engagement to marry is nowadays generally regarded as a personal and social commitment and it seems unlikely that many people would regard it as creating a legal relationship, breach of which could result in a claim for substantial damages. We did not think that the considerable expense of a public opinion survey was justified on this limited question, but we did particularly invite views on it in our Consultative Memorandum. There was no dissent from the view expressed above. 2.5 A second criticism of the present law is that any legal restriction on the freedom of a person to withdraw from a proposed marriage is undesirable. It is not in the best interests of the parties, nor in the interests of society, that one of the parties should be induced to enter into marriage by the threat of legal action. 2.6 A third criticism is that a right of action may potentially afford scope for blackmail, or "gold-digging" claims, or actions raised out of spite. This risk has been cited as a major reason for the abolition of the action in England"

'Currie v. Guthrie (1874) 12 S.L.R. 75; Mclntyre v. Cunningham (1920) 36 Sh. Ct. Rep. 54. 'Mclntyre v. Cunningham (1920) 36 Sh. Ct. Rep. 54. It is for this reason relevant to make averments as to the defender's financial position (see Tucker v. Aitchison (1846) 9 D, 21; Somerville v. Thomson (1896) 23 R. 576). 3Hoggv.Gow May 27,1812, F.C.; Rose v. Gollan (1816) l Mur. 82. 4(1883)2 Guthrie 450. 'Legal Aid (Scotland) Act 1967, Sched. 1,Part 11. %ee Tucker v. Aitchison (1846) 9 D. 21. 'Fletcher v. Grant (1878) 6 R. 59. '1907 S.C. 154,162. 9LawCorn. No. 26 (1969),Breach of Promise of Marriage, para. 17. and some states of the United States of America.' Although actions appear to be rare, there is no means of knowing how often actions are threatened, and even a few blackmail attempts may be thought to be too many. 2.7 A fourth criticism is that to allow damages to be recovered for breach of promise is somewhat inconsistent with the approach now taken to financial provision on divorce. Divorce is nowadays very common and people can now be divorced against their will even if they have not been guilty of any matrimonial ~ffence.~Financial provision on divorce may be awarded to either party3but, whatever else may be its purpose, it is no longer generally regarded as providing damages for breach of the obligations assumed on marriage. A person who is granted a divorce after a short childless marriage may well not receive (and indeed will often not even claim) any financial provision. It may seem anomalous that damages can be awarded against someone for withdrawing from an engagement but not for withdrawing from a marriage.

Optionsfor reform 2.8 In our Consultative Memorandum we put forward two options for ref~rrn:~(a) to abolish the action altogether (as has been done in England and wale^,^ A~stralia,~New Zealand7 and some states in the United States of Americas); or (b) to restrict the damages recoverable (as has been done in some other states in the United States of America9). There was almost unanimous support for some reform of the law on breach of promise. Opinion was, however, divided as between the two options. A few commentators suggested a third possibility-to abolish the action for breach of promise but to allow certain losses to be recovered under some other principle. We shall deal with this last possibility first. 2.9 Abolition of the action for breach of promise would not prevent an action based on fraud, or on recompense for unjustified enrichment," or on the somewhat obscure and anomalous line of cases permitting a person in certain limited circumstances to recover expenditure incurred in reliance on an arrangement which is not a legally enforceable contract.'' It would not be realistic to suppose, however, that such residual remedies would provide much prospect of a successful action in all but the most unusual cases. If abolition of the action for breach of promise were to be coupled with the provision of an effective remedy for the recovery of certain losses, the remedy

'Feinsinger, "Legislative Attack on 'Heart-balm"', 33 Mich. L. Rev. (1935) 979. Since the 1930s, some 15 states have abolished the action for breach of promise by so-called "heart-balm" statutes, which have been described as a Ieglslative response to serious abuses of the action. 2Divorce (Scotland) Act 1976, S. 1(2)(e). 'Ibid., S. 5. 4Proposition 1, para. 2.19. 'Law Reform (Miscellaneous Provisions) Act 1970, S. l(1). We are informed by the Law Commission that, so far as their records disclose, abolition of the action has not given rise to difficulties. 6Marriage Amendment Act 1976, S. 21. 'Domestic Actions Act 1975, S. 5(1). *See Krause, Family Law Cases and Materials (1976), pp. 116-8. 91bid. 'OSee e.g. Newton v. Newton 1925 S.C. 715. "Walker v. Milne (1823) 2 S. 379; Glassford v. Brown (1830) 9 S. 105; Heddle v. Baikie (1846) 8 D. 376; Dobie v. Lauder's Trs. (1873) 11 M. 749; Allan v. Gilchrist (1875) 2 R. 587; Hamilton v. Lochrane (1899) 1 F. 478; Gilchrist v. Whyte 1907 S.C. 984; Gray v. Johnston 1928 S.C. 659. would have to be a new statutory one. A statutory provision on such a remedy would have to be quite elaborate. We doubt whether this subject is such as to justify elaborate legislative intervention. There is, moreover, a serious difficulty in relation to the role of fault in any such new remedy. If losses could be recovered without fault on the part of the defender there would be a risk of unacceptable results. Why, for example, should a man who himself breaks off an engagement for no good reason recover from his fiancee expense which he has incurred in reliance on the engagement, such as the expense of trying to buy a house? On the other hand, if losses could be recovered only on proof of fault, many of the criticisms levelled at breach of promise actions could be levelled at the new remedy. There would, in fact, be breach of promise actions under another name. One interesting suggestion was that fault should be ignored and that certain losses (such as expenditure actually incurred in contemplation of the marriage or loss caused by the giving up of employment as a result of the engagement) should simply be distributed equally between the parties. Again, however, we are not convinced that this would always produce fair and acceptable results. Suppose, for example, that a man has a well-paid post in some climatically unpleasant part of the world. Because of his engagement to marry, he gives this up for a less well-paid post in Scotland. He then falls in love with another woman and breaks off the engagement. Why should he have a legal right to recover from his former fiancee half of the loss in income resulting from his change of employment? Although we gave careful consideration to these suggestions, our conclusion was that they would be liable to produce at least as much difficulty as the present law. We concluded, therefore, that the effective choice was between the two options presented in the Consultative Memorandum-abolishing the action or restricting the types of damages recoverable. 2.10 Those who favoured retaining the action but restricting the types of damages recoverable generally thought that a claim for damages should be confined to (a) loss due to expenses actually incurred in contemplation of the marriage; (b) loss caused by giving up employment, or failure to take up employment, as a result of the engagement; and (c) other pecuniary loss suffered as a result of reliance on the engagement. Even these restricted heads of damages could give rise to very substantial claims as, for example, in the case figured above where a man gives up a well-paid post abroad as a result of his engagement to marry. We question whether in modern conditions responsibility for this sort of loss, flowing from a voluntary decision to give up or change employment, can reasonably be laid at the door of a fiance(e).

Recommendation 2.11 The fundamental question is whether an engagement to marry should be regarded as giving rise to a legal obligation. If not, it is hard to see on what basis any damages should be recoverable. In our view an engagement to marry should not give rise to any legal obligation. We therefore recommend: 1. (a) An engagement or promise to marry should not have effect to create any legal rights or obligations; and (b) the action for breach of promise should be abolished.'

'See draft Bill, Appendix A, cl. 1. 4 2.12 Part (a) of the above recommendation is intended to apply to engage- ments or promises to marry governed by Scots law, no matter where any action based on them is raised. It lays down a rule of substantive law. Part (b) of the recommendation is designed, first, to preclude any attempt to base an action for breach of promise on any ground other than contract or promise; and second, to make it clear that an action for breach of promise is incompetent in a Scottish court, even if the engagement or promise is governed by some foreign law under which it does give rise to a legal obligation. Part (a) of the recommendation should, we think, apply to engagements whenever made, unless an action based on such an engagement had actually been commenced before implementing legislation came into force. Part (b) would apply-only to actions brought after the implementing legislation came into force.'

Property disputes on termination of engagement 2.13 There are at present no special rules applying to property disputes between engaged couples. The normal rules applying to disputes about any property apply. Thus if a man has spent money, without any intention of donation, on improving property belonging to his fiancke, he may have a claim based on the general law of recompense.' Again, if one party has given the other an unconditional gift (such as a Christmas present) then, in accordance with the general law on the transfer of property by donation, that gift will be irrecoverable even if the engagement is subsequently broken off. If, however, the gift was expressly or impliedly conditional on the marriage taking place it could be recovered, again in accordance with the general law on this topic, if the marriage did not take p1aceW3These rules apply to engagement rings4 and to engagement gifts made by third par tie^.^ 2.14 In the Consultative Memorandum we provisionally concluded that the existing law on unjustified enrichment provided adequate remedies for any problems which might arise in relation to property on the termination of an engagement, and that there should not be a special set of rules for regulating property disputes between formerly engaged couples."e noted that, although in England and Wales the courts have power to settle property disputes between couples whose engagement to marry has terminated,' the legislation on this matter merely applies existing provisions for settling disputes between married couple^.^ As there are no such provisions in Scots law, we considered that it would be unjustifiable and anomalous to enact a special set of rules

'These points are all dealt with in clause 1 of the draft Bill appended to this Report. Cf. the Law Reform (Miscellaneous Provisions) Act 1970, S. 1. 2See e.g. Newton v. Newton 1925 S.C. 715. 'The applicable legal principle here is restitution, and the applicable remedy is the condictio causa data, causa non secuta. See Stair 1.7.7. (". . . all things that become in the of either party in contemplation of marriage, the marriage (which is the cause) failing to be accomplished, the interest of either party ceaseth, and either must restore: . . ."). 'See Gold v. Hume (1950) 66 Sh. Ct. Rep. 85; Savage v. McAllister (1952) 68 Sh. Ct. Rep. 11. In the first of these cases it was held that a ring was given unconditionally; in the second that it was given on the condition that it would be returned if the marriage did not take place for any reason other than the donor's breach of the engagement. %tair 1.7.7. Proposition 2, para. 3.6. 'Law Reform (Miscellaneous Provisions) Act 1970, S. 2(2). Warried Women's Property Act 1882, S. 17; Matrimonial Causes (Property and Maintenance) Act 1958,S.7. for property disputes between formerly engaged couples. This was supported on consultation, and we therefore make no recommendation for legislation on this point. 2.15 We gave separate consideration in the Consultative Memorandum to the question whether there should be a special statutory rule on the ownership of engagement rings. We noted that in England and Wales section 3(2)of the Law Reform (Miscellaneous Provisions) Act 1970provides that: "The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason." In favour of a rule of this nature, it could be said that the present law is uncertain and that it is advantageous to have a reasonably clear rule. Against a special statutory rule on engagement rings, it could be said that they do not differ in any legally significant respect from various other gifts between engaged couples; that they do not seem to give rise to frequent legal disputes; and that they can safely be left to be regulated by the general law. We stated no provisional conclusion, but merely set out options and invited views. The majority of those who commented thought that no special statutory rule on engagement rings was necessary. We agree with this view and therefore make no recommendation for legislation on this point.

PART 111 ACTIONS OF ADHERENCE

Introduction 3.1 A wife or husband who has been deserted by the other spouse without reasonable cause may raise an action of adherence. This is an action in which the pursuer requests the court to grant a "decree ordaining the defender to adhere to the pursuer and cohabit with her as his wife (or with him as her husband)".' Conclusions for adherence were not unusual in consistorial actions before the Courts Spiritual in medieval Scotland.' The practice of the Officials was taken over after the Reformation by the Commissary Courts;"ut decrees of adherence were also given by the Pre~byteries.~Actions of adherence were recognised by the well-known Act of the Scottish Parliament of 1573 which established desertion as a ground of divorce.' Under that Act, a deserted spouse was required to raise an action of adherence in the local court, as the first of sundry preliminary steps of procedure which had to be taken before an action of divorce for desertion could be raised on the expiry of the

'Rules of , Appendix, Form 2, para. (18). 2Liber OjjTcialis Sancti Andree, Abbotsford Club, 1845. items 119,125,148 and 162: unpublished Dunblane Act Book, f. 12r0. 3F~rexample in Jan. 1567-8, the Earl of Argyll raised an action of adherence in the Commissary Court of Edinburgh. Edinburgh Court Decrees (MSS), vol. 6, 22 June 1573 (Scottish Record Office). 4Selectionsfrom the Records of the Kirk Session ofAberdeen, Spalding Club, 1846, p. 175. 'A.P.S. 1573, record edn., c. l; 12 mo. edn., c. 55: the Act was inspired by Genevan legislation of 1561 based on John Calvin's Projecf d'ordonnance sur les mariages. prescribed period of desertion.' These preliminary steps of procedure were abolished in 1861,2 but actions of adherence remained competent. They are now almost invariably coupled with a claim for aliment.

Present law 3.2 The ground of an action of adherence, whether or not it includes a claim for aliment, is that the defender, being bound to adhere, wilfully refuses to do so.3 There is a difference of opinion on the question whether the pursuer must aver and prove that he or she is willing to adhere to the defender. On one view, this is nece~sary.~On another, willingness to adhere is to be presumed from the raising of the a~tion.~Yet another view is that while the pursuer must satisfy the court that he or she is willing to adhere, this need not be by corroborated e~idence.~It is a defence to the action that the defender has reasonable cause for desertion. Since 1956 it has been held that a spouse has reasonable cause for non-adherence, not only if the other spouse has been guilty of adultery or cruelty, but also if he has been guilty of any behaviour which is grave and weighty and such that it would shock the conscience of reasonable persons to require the parties to live t~gether.~An action of adherence is a consistorial action and, as such, is governed by special procedural rules.8 There can, for example, be no decree without proof, even if the action is undefended or the defender admits that he or she refuses to adherem9Although the sheriff courts have no jurisdiction to entertain an action for adherence alone'' they have, by statute, jurisdiction in an action of adherence and aliment.'' 3.3 A decree of adherence will not be specifically enforced.'' A spouse who has obtained such a decree cannot instruct messengers-at-arms or sheriff officers to bring the deserting spouse back by force, and cannot enforce the decree indirectly by doing against the deserting spouse's property to induce him or her to return.13 In an action of adherence and aliment the award of aliment is conditional on the defender not complying with the decree of adherence. A decree of adherence has no effect on property or succession.

Criticisms of present law 3.4 We consider that the action of adherence has outlived its usefulness.14 There appear to be only two possible arguments for its retention, both of

'For a fuller description of the procedure, now of purely historical interest, see our Memorandum to the Finer Committee on One-Parent Families (1974) Cmnd. 5629, vol. 2, pp. 160-3 (App. 6, paras. 18-20). 'Conjugal Rights (Scotland) Amendment Act 1861, S.11. 3AB.v. CB. 1937 S.C. 408 at 419-20. 4Cameronv. Cameron 1956 S.L.T. (Notes) 7; Burnett v. Burnett 1958 S.C. 1;Jack v. Jack 1962 S.C. 24 at 26. 5Smithv. Smith 1967 S.L.T. (Sh. Ct .) 16. 6Reid v. Reid 1978 S.L.T. (Sh. Ct .) 2. 'Richardson v. Richarchon 1956 S.C. 394. sConjugal Rights (Scotland) Amendment Act 1861, S. 19; Rules of Court, rules 154-170B. gSleighv. Sleigh (1893) 1S.L.T. 30; Wrightv. Wright(1894) 2 S.L.T. 29. l0Dochertyv. Docherty 1959 S.L.T. (Sh. Ct.) 29. "Sheriff Courts (Scotland) Act 1907, S. 5(2). 12Hastingsv. Hastings 1941 S.L.T. 323 at 325. 13Macgregorv. Macgregor (1836) 14 S. 707. 14The corresponding English action, for restitution of conjugal rights, was abolished by the Matrimonial Proceedings and Property Act 1970, S. 20. which lack substance. The first is that the action is a useful way of demonstrating, in a case where there is doubt about which spouse is in desertion, that the pursuer is calling on the other spouse to adhere. There is, however, no reason why a pursuer who is genuinely willing to adhere should not make his or her offer in a less threatening way, and no reason why the law should provide a tactical weapon for a pursuer who is not genuinely willing to adhere. The second argument is that the action of adherence and aliment is a useful remedy for the deserted wife who wishes a decree for aliment. There is, however, no reason why such a wife should not raise an action for aliment alone.] It is not necessary, and merely makes the procedure more iengthy and expensive, to seek in addition a decree of adherence. 3.5 The retention of an unnecessary and obsolete remedy complicates the law and is for that reason undesirable. This is well illustrated by the law on the jurisdiction (in the international sense) of the Scottish courts in actions of adherence and aliment. The law here is bedevilled by uncertainty as to whether the action is of a "status" or a pecuniary nature and is confused and unsatisfactory.

Recommendation 3.6 In the Consultative Memorandum we provisionally concluded that actions of adherence should be abolished; and that it should no longer be possible to apply for a decree of adherence either on its own or along with aliment or any other remedy.3 This provisional conclusion was unanimously supported on consultation. We therefore recommend: 2. It should no longer be competent to apply for a decree of adheren~e.~

PART IV ACTIONS OF ENTICEMENT OF A SPOUSE

4.1 Another action which seems an anachronism and which serves no useful purpose is the action for enticement of a spouse.' The ground of this action is not adultery, which need not be established, but simply the inducement of a spouse (whether the husband or wife) to leave the other spouse. Although there are statements by some judges and textbook writers to the effect that such an action is possible in Scots law, there is no recorded instance of damages being awarded for enticement. The action has been abolished in England and Wales6 and in a number of other English-speaking jurisdiction^.^ After

'An action of this nature is at present known as an action for interim aliment in the sheriff courts, but the award can continue so long as the defender refuses to adhere. See Donnelly v. Donnelly 1959 S.C. 97. In our Report on Aliment and Financial Provision (Scot. Law Com. No. 67, 1981). para. 2.59, we recommend that the artificial distinction between actions for interim aliment and actions for so-called permanent aliment should be abolished. Under our recom- mendations it would continue to be possible for a deserted wife (or husband) to bring an action for aliment alone. There would continue to be no need for a crave or conclusion for adherence. 2See Anton, Pr~vateInternational Law, pp. 340-1; Clive, Husband and Wife (2nd edn. 1983). pp. 219-21. "ee Proposition 3, para. 4.6. 4See draft Bill, Appendix A, cl. 2. %ee Scot. Law Corn. No. 42: Report on Liability for Adultery and Enticement of a Spouse (1976). 6Law Reform (Miscellaneous Provisions) Act 1970, S. 5. 'See Scot. Law Com. No. 42, Appendix B. consultation on this question, we recommended in an earlier Report that the action for damages for enticement of a spouse should be declared by statute to be incompetent.' The relevant section of that Report is reproduced in Appendix B. Most of the recommendations in our earlier Report related to adultery, and the opportunity to implement them was taken in the Divorce (Scotland) Act 1976.2Our recommendation to abolish the action of enticement has not yet been implemented, however, and we therefore suggest that the opportunity to do so should be taken in any legislation which implements the recommendations contained in this Report. We have included a suitable provision in the draft Bill.3

PART V CURATORY OF MARRIED MINORS

Present law 5.1 The law governing the curatory of a minor wife by her husband is set out in section 2 of the Married Women's Property (Scotland) Act 1920, which provides that: "A husband of full age, and subject to no legal incapacity, whose wife is in minority, shall be her curator during her minority, but no longer; but where the husband is in minority at the date of the marriage, or subject to some legal incapacity, the wife's father, or other ~urator,~if she have any, shall be entitled to continue to act as such until she attains majority, or her husband's curatory commences." The effect of this rule is that a young woman under the age of 18 who is married to a man of 18 or over will require his consent, subject to certain exceptions, to all her contracts and other juristic acts. In practice this requirement is likely to be ignored in the case of normal cash transactions, where the question of legal capacity to contract is unlikely to arise. Problems may arise, however, if the wife wishes to litigate or to sell her heritable property or to enter into any other serious legal transaction. 5.2 A male minor does not fall under the curatory of a wife of full age and capacity. On marriage he is probably freed by forisfamiliation from the curatory of his parents."here is, however, some doubt about whether the marriage of a young man always results in fori~familiation.~In the old case of Anderson v. Anderson7 it was held that the marriage of a young man of 20, who was still under indenture as an apprentice mason, did not automatically result in forisfamiliation. In Harvey v. Har~ey,~however, Lord Justice-Clerk Inglis stated the law, obiter, as follows: "A girl, by her marriage, only exchanges one curator for another. She passes from the guardianship of her father to that of her husband. But a

--p 'Ibid., para. 46, Recommendation 7. 2S. 10. 'See draft Bill, Appendix A, cl. 2. No draft Bill was appended to Scot. Law Corn. No. 42. 4The mother of a legitimate child is now curator along with the father: Guardianship Act 1973, S. 10. 'Stair 1.5.13; Erskine 1.6.53. 'Bankton 1.6.8. '(1832) 11 S. 10. '(1860) 22 D. 1198at 1208. boy above fourteen, by his marriage, . . . becomes at once and for ever emancipated from the paternal curatory, . . .".

Criticisms of present law 5.3 There are two principal criticisms of the present law. The first is that it offends against the principle of sex equality. The second is that the very notion of curatory of married minors seems inconsistent with the law on capacity for marriage. If the law regards two young persons as having sufficient capacity to contract a marriage, it ought, on this view, to regard them as having the capacity to act independently of their parents and each other, even though-as several commentators pointed out to us-early marriage is not necessarily a sign of early maturity.

Options for reform 5.4 In the Consultative Memorandum we put forward a number of options for reform.' We did, however, point out that we intended to resume work on a memorandum on the law of minors and pupils when resources permitted, and we noted that it would be possible to deal with the question of the legal capacity of a married minor in that context. Some commentators favoured this course. It seems to us, however, that the discriminatory effect of the present rule should be removed at the earliest opportunity. The first option which we considered was to remove this discriminatory effect by applying the rule of section 2 of the 1920 Act to minor husbands. Thus a husband under the age of 18 would be subject to the curatory of his wife if she were over that age. We doubted whether this solution would be acceptable, and no support for it was forthcoming. A second option would be to provide that marriage as such had no effect on curatory. This, however, would leave the general law on forisfamiliation to operate. A married minor who set up an independent household would be forisfamiliated by virtue of that fact: a married minor who continued to live in his or her parents' home would still be under curatory. There was little support for this option on consultation. The third option, and the one which received the support of a majority of commentators, is to provide that marriage frees a minor from curatory. The effect would be that each spouse would be freed on marriage from the curatory of his or her parents, or of any curator appointed by a parent, and that neither spouse would be subject to the curatory of the other. This in our view would be the most satisfactory solution.

Recommendation 5.5 We therefore recommend: 3. (a) No married person should, by reason only of minority, be subject to the curatory of his parent or of any person appointed by his parent. (b) No married woman should, by reason only of minority, be subject to the curatory of her husband.l As a consequential matter section 2 of the Married Women's Property (Scotland) Act 1920(quoted above) should be repealed.? We should point out

'Proposition 5,para. 6.4. ZSeedraft Bill, Appendix A, cl. 3(1)and (2). "bid., cl. 3(3). 10 that this recommendation would have no effect on the age of majority. A married minor would remain a minor but he or she would be legally in the position of a minor whose parents are dead and who has no curator. This means, in Scots law, that the minor is free to contract, without the need for anyone else's consent, but is given the right to apply to have certain contracts set aside if they were to his or her serious prejudice ("enorm lesion"). Application cannot be made more than four years after the minor has attained the age of majority.

PART V1 HUSBAND'S RIGHT TO CHOOSE PLACE OF MATRIMONIAL HOME

Present law 6.1 At common law the husband is said to have the "right" to choose the place of the matrimonial residence. The counterpart to the right is the duty of the wife to accompany him there, provided only that the accommodation selected is reasonably suitable and that the offer of accommodation itself is genuine.' The husband's right to choose the place of the matrimonial home is significant only in the context of desertion since, as we have seen,' the duty to adhere will not be specifically enforced. In refusing to adhere in the chosen matrimonial home, the wife risks placing herself in desertion,"espite the fact that her refusal may be no more than a disagreement over the location of the home.

Criticisms of present law 6.2 The present law is inconsistent with the idea of legal equality in marriage. In most other areas of the law wives have obtained complete legal equality with their husbands. It is anomalous that the husband should have the right to impose his will in relation to the choice of the matrimonial home.4 The only justification for the present law might be that in a case of deadlock there ought to be some rule for deciding which spouse is in desertion. This may, however, be doubted. There is no reason why, in certain situations, neither spouse should be held to be in desertion. In such a case the parties could obtain a divorce after two years' non-cohabitation if they both so wished, or after five years even if one refused to ~onsent.~

Options for reform 6.3 In the Consultative Memorandum we suggested two possible options for ref~rrn.~The first would be to replace the present rule by a test based on the reasonableness of the respective attitudes of the spouses. Such a test, if adopted, might provide (a) that in a case where the spouses were living apart

'Muirv. Muir (1879) 6 R. 1353at 1356-7; Martin v. Martin 1956 S.L.T. (Notes) 41. 2See para. 3.3 above. 'See Stewartv. Stewart 1959 S.L.T. (Notes) 70. 4See Dunn v. Dunn [l9491 P. 98 per Denning L.J. at 103. In the spouse who is acting unreasonably will be in desertion. If it cannot be said that either is more unreasonable, then probably neither will be in desertion. See Bromley, Family Law (6th edn. 1981), pp. 113-4; 22&1. 'Divorce (Scotland) Act 1976, S. 1(2)(d)and (e). Tara. 9.3. because they could not agree on the location of the matrimonial home, the spouse whose rejection of the other's choice was the more unreasonable should be regarded as being in desertion; (b) that if both spouses were equally unreasonable in rejecting the other's choice, both would be regarded as being in desertion (notwithstanding the normal rule that desertion requires a spouse who is willing to adhere and a spouse who refuses to adhere); and (c) that if both spouses were equally reasonable in rejecting the other's choice, neither would be regarded as being in desertion. Other versions of a reasonableness test could be formulated. The second option would be to abolish the present rule and put nothing in its place. In favour of this approach it could be said that the introduction of an express reasonableness test would be an unduly complicated solution to a problem which does not very often come before the courts. If the existing rule were abolished the courts would still be able to deal with the question of desertion and willingness to adhere in a commonsense way in the light of the whole circumstances of the case. On consultation there was virtually unanimous support for this second option.

Recommendation 6.4 We therefore recommend: 4. Any rule of law whereby the husband, as between husband and wife, may choose the place of the matrimonial home, should cease to have effect.'

PART V11 ANTENUPTIAL MARRIAGE CONTRACTS

Introduction 7.1 Marriage contracts, although much less common than formerly, still have their uses in certain situations, and it is not our purpose here to suggest that any restriction should be placed on the freedom of parties to enter into them. We have considered, however, whether two special rules applying to antenuptial marriage contracts are still justified. Both were understandable in the context in which they arose, but may now seem to be unnecessary and unfair to third par tie^.^ The first is that a wife can by an antenuptial marriage contract create, out of her own funds, an alimentary liferent3 for herself which is protected against her creditors. The second is that an antenuptial contract is regarded as an onerous transaction, the marriage itself being the consider- ation. We examine these rules in turn.

Wife's power to create alimentary liferent in her own favour Present law 7.2 The general rule is that no-one can so settle his own funds as to secure for himself an alimentary liferent free from the diligence of his creditors:

'See draft Bill, Appendix A, cl. 4. 2There used to be another rule in this category. At one time an antenuptial marriage contract could be used to deprive future children of their legitim. This was changed by the Succession (Scotland) Act 1964, S.12. 'The same principles apply to an alimentary annuity or other alimentary right. See Dobie, Liferent and Fee (1941), pp. 231-7. For the sake of convenience, however. we discuss the rule in terms of alimentary liferents. "The reason is that he could otherwise secure for himself the enjoyment of his yearly income and at the same time put that income wholly beyond the reach of his creditors. It is an elementary principle that where anyone has the full beneficial interest in a fund, he is bound to make that fund available to his creditors. . . .7' 1 There is, however, one exception to this rule. A woman can create an alimentary liferent for herself out of her own funds if she settles them by means of an antenuptial marriage ~ontract.~A man has no such privilege.

Criticisms of present law 7.3 An alimentary liferent cannot be a~signed,~and one justification for the present law on a wife's alimentary liferent of her own funds might be that it protects the wife by preventing her husband from cajoling her into assigning her liferent to further his business interest^.^ It is significant that, unless there is clear and explicit provision to the contrary, the alimentary protection lasts only as long as the marriage: the wife's liferent ceases to be alimentary on the death of the husband or on divorce.Whether it is right for the law to take the view nowadays that married women of full age and capacity are in need of special protection6 is at least open to debate. On the one hand it might be argued that the present rule is a beneficial anomaly which does not seriously prejudice creditors, because they can arrest any excess over a reasonable aliment,' and which may still afford a useful protection to wives. On the other hand it might be argued that the existing rule is an unjustifiable exception to a clear and reasonable general rule-that a person cannot settle his own funds in such a way as to provide an income for himself which is protected from his creditors-and that it is inconsistent with the legal status now enjoyed by married women.8 There was almost unanimous support on consultation for the view that the present rule was an unjustifiable anomaly and should be abolished. Any provision abolishing the rule should, in our view, apply only to contracts entered into after the amending legislation comes into force.

Recommendation 7.4 We therefore recommend: 5. (a) It should no longer be possible for a woman, by antenuptial marriage contract, to create an alimentary right in her own favour in respect of any property provided by her.9

- p- 'Cargill 1965 S.C. 122 per Lord President Clyde at 124. ZIbid. 'See Coles 1951 S.C. 608. 4Cf.the reasoning in Menzies v. Murray (1875) 2 R. 507. sSturgis's Tr. v. Sturgis 1951 S.C. 637; Neame v. Neame's Trs. 1956 S.L.T. 57; Strange and Another, Petrs. 1966 S.L.T. 59; Pearson and Others, Petrs. 1968S.L.T. 46. Tf.Beith's Trs. v. Beith 1950 S.C. 66. 'See Livingstone v. Livingstone (1886) 14 R. 43; Douglas-Hamilton v. Duke and Duchess of Hamilton's Trs. 1961 S.C. 205 at 222, 223, 225. See also the Bankruptcy (Scotland) Act 1913, S. 98(2) (part of alimentary provision which is in excess of a suitable aliment can be claimed by trustee in sequestration). % similar rule in English law was abolished by the Law Reform (Married Women and Tortfeasors) Act 1935, S. 2(2) and the Married Women (Restraint upon Anticipation) Act 1949, S. 1. "ee draft Bill, Appendix A, cl. 5(l)(a). Marriage as onerous consideration for provisions in marriage contract Present law 7.5 A transfer of property under an antenuptial marriage contract is regarded as an onerous transfer, or a transfer for true, just and necessary cause, even if there is no financial corisideration for it.' The marriage itself is regarded as the consideration: "In comparing postnuptial contracts with antenuptial contracts we see at once this essential distinction, that the provisions of an antenuptial contract are given principally in consideration of the marriage itself, whilst in postnuptial contracts that element is awanting. The marriage has already taken place. "2 ". . . there is no contract which our law regards as more onerous than an antenuptial marriage-contract; nor does it affect the onerosity of an antenuptial marriage-contract that the whole money is provided by the husband and none by the wife. "3 It follows that a transfer under an antenuptial marriage contract is immune from attack by the donor's creditors as a gratuitous alienati~n.~The creditors might be able to reduce the transaction if they could prove that the marriage contract provisions were part of a fraudulent scheme to defeat their claims, but they would have to prove that both parties participated in the fraud.5The possibility that creditors might be able to challenge marriage contract provisions which were grossly exorbitant has also been left open,6although there would appear to be an obvious difficulty in deciding how much a marriage was worth as consideration for the provisions. The principle protecting antenuptial contracts has been extended to cover a transfer of money by a man to his intended wife to meet the purchase price of a house to be acquired by her for use as the matrimonial home.'

Criticisms of present law 7.6 It is doubtful whether the rule that the marriage itself can be regarded as onerous consideration for a transfer of funds by one party to another squares with contemporary attitudes. That the rule was open to abuse was recognised in nineteenth century cases. In McLay v. McQueen,' for example, the Lord Ordinary said that he was "not surprised that the [husband's] creditors should feel indignant and think that they had been tricked". At that time, when antenuptial marriage contracts were everyday transactions and were widely regarded as an essential form of financial protection for a wife and child, the preservation of a potentially unfair rule may have been justified. That is no longer the case. We therefore invited views in the Consultative

'Erskine IV.1.33. 'Dunlop's Tr. v. Dunlop (1865) 3 M. 758 per Lord Benholme at 764. 3McLayv. McQueen (1889) 1 F. 804 per Lord Kincairney at 809. 4Watson v. Grant's Trs. (1874) 1 R. 882; McLay v. McQueen (1899) 1 F. 804. These actions were founded on, inter alia, the Bankruptcy Act 1621. A transfer under an antenuptial marriage contract would also be immune from attack under clause 33 of the draft Bill appended to our Report on Bankruptcy and Related Aspects of Insolvency and Liquidation (Scot. Law Corn. No. 68, 1982), because the transfer would be for "adequate consideration". 'McLay v. McQueen (1899) 1 F. 804. Tarphin v. Clapperton(1867)5 M. 797. 'Armour v. Learmonth 1972S.L.T. 150. '(1899) 1 F. 804 at 810. Memorandum whether it should continue to be the law that the marriage itself is regarded as onerous consideration for provisions in an antenuptial marriage contract.' There was almost unanimous agreement that it should not be, and we therefore recommend that the law should be changed. Any change should not affect existing marriage contracts: it should apply only to contracts entered into after the amending legislation comes into effect. Nor should a change prevent an antenuptial marriage contract from being regarded as onerous where there was in fact sufficient consideration other than the marriage. The abolition of the common law rule should be without prejudice to any statutory provision on gifts in consideration of marriage. Certain gifts in consideration of marriage are, for example, exempt from capital transfer tax.2

Recommendation 7.7 We therefore recommend: 5. (b) It should no longer be the law that the marriage itself is regarded as onerous consideration for provisions in an antenuptial marriage ~ontract.~

PART V111 HUSBAND'S REMAINING LIABILITY FOR WIFE'S ANTENUPTIAL DEBTS

Present la W 8.1 Under the common law, a right of property in the wife's moveable estate-the jus mariti-vested in her husband on marriage. Because the husband took her entire moveable estate and because a married woman was not subject to personal diligence, the husband was liable for the whole of her antenuptial debts. This common law liability was restricted by the provisions of section 4 of the Married Women's Property (Scotland) Act 1877 which limits the husband's liability to "the value of any property which he shall have received from, through, or in right of his wife at, or before, or subsequent to the marriage, . . .". However, by the Married Women's Property (Scotland) Act 1881, the jus mariti was abolished and the husband, as a general rule, now receives no property "from, through, or in right of his wife". Actual liability may still arise if a husband has received property "from, through, or in right of his wife" by, for example, marriage contract, gift or succession: but our impression is that the husband's liability for his wife's antenuptial debts is now a dead letter. A wife is not liable for her husband's antenuptial debts.

Criticisms of present law 8.2 The present rule is a discriminatory relic of the pre-1881 system of matrimonial property and it must be very doubtful whether it now serves any useful function. We therefore invited views in the Consultative Memorandum

'Proposition 7, para. 8.4. 2Finance Act 1975, Sched. 6, para. 6. Cl. 5(2) of the draft Bill contained in Appendix A leaves such exemptions unaffected. 3See draft Bill, Appendix A, cl. 5(l)(b). whether the rule should be abolished. It was the unanimous view of consultees that it should be. The question arises, however, whether any amending legislation should be confined to debts incurred after it comes into force. If our impression that the rule is a dead letter is correct, there would seem to be little objection to abolishing the rule even in relation to debts incurred before amending legislation comes into force. It would, in any event, be difficult to argue that this would unduly prejudice a woman's creditors, because she continues after her marriage to be liable for her own debts.

Recommendation 8.3 We therefore recommend: 6. (a) The husband's remaining liability for his wife's antenuptial debts should be abolished.' 8.4 As a consequential matter section 4 of the Married Women's Property (Scotland) Act 1877 would fall to be repealed. This, however, would remove the only part of that Act which now has any effect. The only remaining section (apart from the usual provisions on commencement, extent, short title and so on) protects the earnings of a married woman from the husband's jus mariti and jus administrationi~.~As these have long disappeared the section is now obsolete and unnecessary. The opportunity presented by the repeal of section 4 of the Act could therefore be taken to repeal the whole of the Act. We therefore recommend: 6. (b) The Married Women's Property (Scotland) Act 1877 should be repealed.

PART IX PRESUMPTION THAT WIFE IS HUSBAND'S DOMESTIC MANAGER

Present law 9.1 Where spouses are living together, or maintaining a joint household, there is a presumption that the wife is praeposita negotiis domesticis, that is, placed by her husband in charge of his domestic e~tablishment.~Third parties are entitled to rely on this presumption unless they have been notified to the contrary or the wife has been inhibited,5 and are entitled to assume that by virtue of her praepositura, or position as domestic manager, the wife has authority to act as her husband's agent in domestic rnatter~.~Her husband will, therefore, be liable for contracts entered into by her within the scope of her ostensible authority as domestic manager-such as contracts for the supply of food, clothing, medicine, household services and other household neces- saries-provided always that the goods or services are suitable to the husband's apparent means, position and standard of living.' There is a lack of modern

'See draft Bill, Appendix A, cl. 6(1). Cl. 6(2) applies this recommendation to debts incurred before the commencement of any implementing legislation. 2S.3. 3See draft Bill, Appendix A. cl. 6(3) and Sched. 2. 4Erskine 1.6.26; Clive, Husband and Wife (2nd edn. 1982). pp. 267-76. 'See paras. 9.2 and 9.3 below. ('Bell, Comm. (7th edn.), pp. 509-10. 'Fraser, Husband und Wife (2nd edn.), pp. 605, 607, 611-13; Encyclopaedia of the Laws of Scotland, vol. 7, pp. 676-7: Clive, op. cit., pp. 269-71. cases on the wife's praepositura. The law is still as laid down by Erskine in the 18th century:' "With regard to disbursements necessary for a family, the rule is, that the wife, who is formed by nature for the management within doors, is presumed, while she remains in family with her husband, to be praeposita negotiis domesticis. In this character she hath power to purchase whatever is proper for the family; and the husband is liable for the price. . . ." 9.2 The wife's praepositura can be cancelled formally by the husband by means of inhibition. This is obtained by presenting the appropriate documents2 at the Petition Department of the Court of Session. The husband does not need to give a reason for seeking an inhibition, the theory being that "every one may remove his managers at pleasure, without assigning any reason for itw3but, in practice, it is usual to narrate that the wife has purported to contract debts to a large am~unt.~When published by registration in the Register of Inhibitions and Adjudications an inhibition has the effect of cancelling the wife's authority to incur debts to third parties on the husband's behalf. Such cancellation is effectual against third parties whether or not they are aware of its existence. 9.3 A husband may also terminate his wife's power to bind him by contracts as praeposita negotiis domesticis by giving informal notification to particular third parties of the cancellation of a~thority.~He may also attempt wider publication of this fact by advertisement in a newspaper, but this has effect only against those who are aware of the advertisement. He probably cannot cancel her power to bind him in a question with third parties by a mere private prohibition, unknown to the third parties concerned, or by giving her an adequate housekeeping allowance-for "these are private matters between the spouses, which shopkeepers and tradesmen have no means of knowing, nor title to inquire into".6 There has, however, been some doubt on these point^.^ 9.4 If a wife contracts as her husband's domestic manager and the other party deals with her on the footing that she is an agent for a disclosed principal, then the husband alone would be liable under the contract; if she contracts as an individual, and the other party relies on her own credit, then she alone would appear to be liable.8 9.5 The right of a third party to hold a husband liable for debts contracted by the wife in the exercise of her praepositura seems to be based on a combination of two rules. The first is that when a husband and wife live together the wife is presumed by the law to have been, and can be assumed

'Erskine 1.6.26. 'I.e. a Bill and Letters of Inhibition. These documents must pass the scrutiny of the Deputy Principal Clerk of Session. They must then be presented to the Signet Office. After signeting, the Letters must be served on the wife by a messenger-at-arms. They can then be registered in the Register of Inhibitions and Adjudications. See Clive, op. cit., pp. 271-3. 3Erskine1.6.26. 4Encyclopaedia of Scottish Legal Styles, vol. 5, pp. 377-8. 'Fraser, op. cif.,p. 635. 6Hume, Lectures, I. 141; see also Dulling v. McKenzie (1675) Mor. 6005: Alston v. Stanfield (1682)Mor. 6007; Gow & Sons v. Maxwell(1920)36 Sh. Ct. Rep. 138. 'See the discussion in Clive, op. cit., pp. 258-9,274. %ee Pettigrew & Stephens, Ltd. v. Crawford (1918)35 Sh. Ct. Rep. 35. by third parties to have been, placed by the husband in charge of his domestic establishment.' The second is that anyone placed in charge of an establishment (whether it is a shop, or a depot, or a factory, or a hotel, or anything else) can be assumed by third parties, unless they have been notified to the contrary (or, perhaps, put on enquiry), to have the usual authority of a person in that position.2 The first of these rules can be regarded as part of family law: the second as part of the law of agency. It is only the first rule with which we are concerned. 9.6 The husband's liability by virtue of his wife's praepositura must be distinguished from his liability to reimburse those who have provided his wife with necessaries when she was entitled to aliment, but was not receiving aliment, from him.3 The latter liability is based on the husband's liability to aliment his wife. It is accordingly not limited to cases where the spouses are living together. Nor can it be cancelled by inhibition or n~tice.~On exactly the same principle a wife might be liable for necessaries supplied to her indigent child.' We are not concerned with this rule here.

Criticisms of present law 9.7 The present rule that the wife is presumed to be her husband's domestic manager can be criticised as outdated, discriminatory and unnecessary. It is outdated because the legal and social background against which it was formulated has changed c~nsiderably.~In Erskine's day a married woman had strictly limited contractual capacity. The general rule was that her personal obligations were absolutely null, even if granted with her husband's consent. She was like a child in her husband's family. In relation to property the general rule was that all her moveable property passed to her husband by virtue of the jus mariti. Even if she had earnings, which was probably unusual in those sections of the community where the praepositura was likely to be important, they too passed to the husband. Personal diligence could not be done against a married woman. There was, therefore, no question of basing liability for household debts on any principle that married women might be liable as individuals of full legal capacity or even on any principle of joint liability. The principle of the husband's liability was the only one that fitted. It is hardly necessary to point out that the situation has changed fundamentally. Married women of full age now have full contractual capacity and can. and do, own property just like any other person. At the very least, it can be said that the way is open for other possible solutions to the question of liability for household debts. The solution whereby the wife is regarded as the husband's housekeeper or domestic manager no longer imp~sesitself as a matter of necessity. 9.8 The rule may be regarded as discriminatory because it is based on the assumption that the household is the husband's establishment, that the wife is his domestic manager, managing the household and entering into contracts on his behalf. In the eyes of the present law he is the principal and she is the

'Erskine 1.6.26. 2Bell,Comm. (7th edn.). pp. 509-10; Gloag, Conrracr (2nd edn.), p. 152. See Clive, op. cit., pp. 276-8. 4Erskine1.6.26, 3ee Morison7sDictionary, Recompense. pp. 1342-7. 'On the earlier law, see generally, Fraser, op. cit., pp. 519 et seq. agent, and this is so even if both are in full-time paid employment, and even if the wife is in paid employment and the husband is not. Some of those who commented on our Consultative Memorandum clearly found the underlying assumptions of the present law highly objectionable. 9.9 The rule is also unnecessary because (a) credit extended to married women nowadays is quite generally extended to them as individuals in their own right,' and (b) ordinary principles of agency are sufficient to make the husband Iiable for his wife's debts in any case where he has expressly or impliedly given her authority to use his credit or act on his behalf, or where he has held her out to third parties as having such authority. In exactly the same way, of course, a wife might be Iiable for her husband's debts if she had authorised him to use her credit or act on her behalf, or if she had held him out as having authority to do so. The ordinary law provides a set of non- discriminatory, generally applicable rules on the liability of one person for debts contracted by another, and there is no need for any special rule presuming a wife to be her husband's domestic manager. It is, moreover, doubtful whether suppliers of household goods and services rely on this special rule to any great extent, even assuming they are aware of it. Before a supplier could safely extend new credit, in reliance on the praepositura, to a woman calling herself Mrs. So-and-so, he would need to know that (a) she was married (and not, for example, widowed or divorced or merely calling herself Mrs. So-and-so); (b) she was living with her husband (and not, for example, alone or with another man); (c) she had not been inhibited; (d) her husband's credit was good; and (e) the goods or services to be supplied were suitable to the husband's apparent position and standard of living.* On one view of the law he would also need to know that (f) the husband had not privately cancelled the wife's authority; and (g) the wife was not provided with an adequate allowance to enable her to pay for the goods or services herself." supplier, in short, could safely rely on the legal rule under consideration only if he knew both the law and the circumstances of the couple very well. If he knew enough to rely on the praepositura he would probably know enough to assess whether he could safely extend credit, even in the absence of any legal rule as to the presumed management of the couple's household affairs.

Optionsfor reform 9.10 In the Consultative Memorandum we discussed several options for ref~rrn.~One was to retain the present law without alteration. There was virtually no support for this on consultation. Another was to replace the wife's praeposituru by a new rule imposing joint and several liability for household debts. We canvassed this possibility, largely because it has been

'It is unlawful to discriminate against a married woman in the provision of goods, facilities or services on credit: Sex Discrimination Act 1975, ss. 1and 29. In Quinn v. Williams Furniture, The Times, Nov. 4, 1980 the Court of Appeal held that retailers who refused to provide a married woman with credit facilities unless her husband signed a guarantee, in circumstances where no guarantee would have been required of a married man, contravened the 1975 Act. 'See on this last point Clark v. Noble (1912) 28 Sh. Ct. Rep. 303; Baird v. Cattrall 1922 S.L.T. (Sh. Ct.) 138; D.Olswang & Co. Ltd. v. Neillands 1938 S.L.T. (Sh. Ct.) 4; Nairn & Marshall v. Thornson (1936) 52 Sh. Ct. Rep. 149. 3See Walton, Husband and Wife (3rd edn.), pp. 201,204; contrast, however, Clive op. cit., pp. 268-9,274. 4Paras. 10.16 to 10.18. 19 adopted in a number of other jurisdictions, although we ourselves had grave reservations about it. We pointed out that the rule would have to be carefully limited to necessaries for the family or household, and that this might give rise to problems of definition or vagueness. There would have to be some rule on the liability of the spouses as between themselves. In Ontario, for example, questions of liability as between the spouses are determined according to the parties' mutual obligation of support: thus if the husband alone is in paid employment, and his wife has no means, he alone is ultimately liable and vice versa.' A rule of this nature could, however, be difficult to apply and productive of disputes about the parties' obligations of support in cases where those obligations were not directly in issue. On the other hand, to give the spouses no right of relief as between themselves could produce harsh results. A wife, for example, might be held liable for debts contracted by her husband with no right of relief against him. Whatever solution was adopted, wives would become liable for debts, such as rent or fuel bills, contracted by their husbands in circumstances where they are not liable at present. There would inevitably be situations in which the imposition on one spouse of liability for the other's debts would be perceived as unjust, particularly if the spouses had separated. Although a few commentators supported the idea of joint and several liability for household debts, a clear majority supported the third option which we put forward for consultation-namely, to abolish the wife's praepositura and leave liability for household debts to depend on the general law. This is the solution which we favour. It would have the additional advantage that liability for debts would not depend on a person's marital status. Moreover, if the rule that the wife is presumed to be the husband's domestic manager were abolished, there would be no justification for any special procedure for cancelling the wife's authority by inhibition. This was the view which we took in the Consultative Memorandum2 and it received almost unanimous support on consultation .3 Recommendation 9.11 We therefore recommend: 7. (a) Any rule of law that a married woman is presumed to be her husband's domestic manager should be abolished and liability for household debts should be left to depend on the general law. (b) It should no longer be competent for a husband to inhibit his wife from contracting debts on his behalf.4

PART X HUSBAND'S LIABILITY FOR EXPENSES OF LITIGATION BY WIFE AGAINST THIRD PARTY Present law 10. The law still recognises that in certain circumstances a husband may be liable for the expenses of his wife, in litigation between the wife and a third party, if he actively participates in the litigation, even although he is not a party to the action and does not have sufficient interest in, and control over,

'Family Law Reform Act 1978, S. 33. 2Para. 10.21. The only support for retaining inhibitions (with an improved procedure) came from those few consultees who favoured retention of the praepositura. 4See draft Bill, Appendix A. cl. 7. the action to make him dominus litis.' The rule was a reasonable and useful one before the Married Women's Property (Scotland) Act 1920. It seems anomalous today. Before 1920 a married woman had very limited legal capacity. Her husband was her curator, and his consent was, as a rule, necessary to any litigation by her, whether as pursuer or defender. In this situation it was not unnatural that the courts should reserve the right to find the husband liable for the expenses of such litigation if his intervention exceeded certain limit^.^ The limits differed according to whether the wife was the defender or the pursuer. If she was the defender the husband would be liable only if his intervention amounted to "mischievous interferen~e";~if she was the pursuer "the husband could be made iiable for the expenses awarded against her in any case in which it appeared to the judge who tried it that the husband was an active participant in the suit."4 Criticisms of present law 10.2 The leading textbook on expenses, published in 1912, deals with the cases on this question under the heading of "Tutors and curator^".^ The nature of the question discussed was whether the husband, by consenting as curator to his wife's action, incurred liability for expenses and if so in what circumstances. A similar question arose in relation to a father's liability, as curator to his minor child, for the expenses of litigation by the child with his ~onsent.~It might have been thought that the husband's special liability based on participation in the wife's litigation would have disappeared with the abolition of his curatorial power by the Married Women's Property (Scotland) Act 1920. That Act enables a married woman to sue and be sued as if she is unmarried. Her husband's consent is no longer necessary. He is, legally, in the same position as any other third party who is not a party to the action, and it seems anomalous that he should be subject to any special rules on liability for expenses. In McMillan v. Ma~kinlay,~however, it was held that his liability was unaffected by the 1920 Act. We cannot see any justification for an exception to the normal rule that a third party, who is not a party to the action, does not incur liability for expenses merely because he advises and helps one of the litigants. In the Consultative Memorandum we suggested that the effect of the decision in McMillan should be overturned. We considered, however, that where the husband has the true interest in the subjectmatter of the action and full control of it-i.e., he is the dominus litis-he should continue to be liable for expenses in the same way as any other litigant. This view was unanimously supported on consultation.

Recommendation 10.3 We therefore recommend: 8. There should be no special rule whereby a husband is liable for the expenses of litigation between his wife and a third party merely because

'McMillan v. Mackinlay 1926 S.C. 673; Swirles v. Isles 1930 S.C. 696. 2SeeMaclaren, Expenses (1912), pp. 233-5. 3Swirlesv. Isles 1930 S.C. 696 per Lord President Clyde at 701. 4Zbid.,at 700. 'Maclaren, Expenses, Part V, Ch. IX. "bid., pp. 232-3; Rodgerv. Weir 1917 S.C. 300. '1926 S.C. 673. he has participated in the litigation. Any change in the law in this respect should be without prejudice to the husband's liability as dominus litis if he would be so liable on the ordinary principles governing such liability.l

PART XI PROTECTION ORDERS UNDER THE CONJUGAL RIGHTS (SCOTLAND) AMENDMENT ACT 1861

Present law 11.1 It is still technically competent for a wife who has been deserted by her husband to apply to the court for a protection order under the above Act. We explain the background to this remedy in the foliowing paragraphs. We must, however, make it clear at the outset that protection orders have been rendered virtually obsolete by the Married Women's Property (Scotland) Acts of 1881 and 1920.' Their sole remaining legal significance is in the field of intestate succession: when a wife has obtained a protection order, any property thereafter acquired by her passes on her death intestate "in like manner as if her husband had been then dead".3 11.2 At common law, the whole moveable estate belonging to the wife passed, by operation of law, to the husband. The right of the husband was called his jus mariti, as distinguished from his jus administrationis, which was a right to manage all his wife's estate, whether heritable or moveable. The jus mariti extended to all the moveable estate held by the wife at the time of the marriage or to which she acquired right during the subsistence of the marriage. The husband might deal with his wife's moveable estate as if she did not exist, he might sell or dispose of it at will, and it was available to his creditors in satisfaction of his debts.4 The jus mariti could, however, be excluded by agreement in an antenuptial marriage contract or by a third party expressly providing that property conveyed or bequeathed to the wife should be excluded from the jus mariti. 11.3 The common law rule could lead to quite blatant injustice. Thus a deserted wife might, for example, succeed in establishing a small shop through her own efforts. The husband, by virtue of the jus mariti, was entitled to return at any time to claim her stock-in trade, any furniture she might have purchased and any savings she might have ac~umulated.~The need to rectify this abuse was recognised in the Conjugal Rights (Scotland) Amendment Act 1861. This Act6 empowered a married woman, deserted by her husband without reasonable cause, to apply by way of petition to the Outer House of the Court of Session or to a sheriff court7 for a protection order. This order

'See draft Bill. Appendix A, cl. 8. 2SimilarEnglish provisions for protection orders under the Matrimonial Causes Act 1857 were repealed by the Administration of Justice Act 1965. S. 34(1) and Sched. 2. 3Conjugal Rights (Scotland) Amendment Act 1861. S. 6 read with S. 5. 4Fraserv. Walker (1872) 10 M. 837. 5Fraser.Husband and Wife (2nd edn.), p. 824. 'SS. 1-3. 'Conjugal Rights (Scotland) Amendment Act 1874. protected from the husband's jus mariti any moveable property acquired by or coming to the wife after the date of the order. The protection order had the effect of a judicial decree of separation a mensa et thoro in regard "to the property, rights, and obligations of the husband and of the wife, and in regard to the wife's capacity to sue and be sued."' Such an order continues until recalled by the court or until the parties resume ~ohabitation.~The 1861 Act directs that property acquired by the wife during the subsistence of the order remains vested in her as if unmarried, and her rights to that property and the rights of any third parties acquired from or through her are not affected by the recall of the order.3As noted above, when a wife has obtained a protection order, all property which she may acquire or which may devolve upon her passes to her heirs and representatives if she dies intestate, "in like manner as if her husband had been then dead."4

Criticisms of present laW 11.4 So far as we are aware the protection order is, in practice, obsolete. It was a statutory device introduced in 1861 to circumvent the husband's jus mariti and it has now been superseded by other statutory developments in this field. The jus mariti and the jus administrationis have both been abolished and a separate property system now prevails. It is now possible to obtain a separation decree on the ground of de~ertion;~and this has the effect of preventing any property thereafter acquired by the wife from passing to her husband on her death intestatee6

Recommendation 11.5 Our provisional suggestion that protection orders should be abolished by statute was unanimously supported on consultation. We therefore recommend: 9. It should no longer be competent for a deserted wife to apply for a protection order under the Conjugal Rights (Scotland) Amendment Act 1861. This recommendation is not the subject of a separate clause in the draft Bill contained in Appendix A, but is given effect by the repeal of the relevant provisions of the 1861 Act and of the whole of the Conjugal Rights (Scotland) Amendment Act 1874 (which contained provisions supplementary to those of the 1861 Act.)7

PART XI1 SUMMARY OF RECOMMENDATIONS

1. (a) An engagement or promise to marry should not have effect to create any legal rights or obligations; and

'Conjugal Rights (Scotland) Amendment Act 1861, S. 5. 'Ibid., s. 3. 31bid.,S. 3. 41bid.,S. 6 read with S. 5. "Divorce (Scotland) Act 1976, S. 4. 6Conjugal Rights (Scotland) Amendment Act 1861, S. 6. 'See draft Bill, Appendix A, cl. 9(2) and Sched. 2. (b) the action for breach of promise should be abolished. (Paragraph 2.11; clause 1.) 2. It should no longer be competent to apply for a decree of adherence. (Paragraph 3.6; clause 2.) 3. (a) No married person should, by reason only of minority, be subject to the curatory of his parent or of any person appointed by his parent. (b) No married woman should, by reason only of minority, be subject to the curatory of her husband. (Paragraph 5.5; clause 3.) 4. Any rule of law whereby the husband, as between husband and wife, may choose the place of the matrimonial home, should cease to have effect. (Paragraph 6.4; clause 4.) 5. (a) It should no longer be possible for a woman, by antenuptial marriage contract, to create an alimentary right in her own favour in respect of any property provided by her. (Paragraph 7.4; clause 5(l)(a).) (b) It should no longer be the law that the marriage itself is regarded as onerous consideration for provisions in an antenuptial marriage contract. (Paragraph 7.7; clause 5(l)(b) and (2).) 6. (a) The husband's remaining liability for his wife's antenuptial debts should be abolished. (Paragraph 8.3; clause 6(1) and (2).) (b) The Married Women's Property (Scotland) Act 1877 should be repealed. (Paragraph 8.4; clause 6(3) and Sched. 2.) 7. (a) Any rule of law that a married woman is presumed to be her husband's domestic manager should be abolished and liability for household debts should be left to depend on the general law. (b) It should no longer be competent for a husband to inhibit his wife from contracting debts on his behalf. (Paragraph 9.11; clause 7.) 8. There should be no special rule whereby a husband is liable for the expenses of litigation between his wife and a third party merely because he has participated in the litigation. Any change in the law in this respect should be without prejudice to the husband's liability as dominus litis if he would be so liable on the ordinary principles governing such liability. (Paragraph 10.3; clause 8.) 9. It should no longer be conpetent for a deserted wife to apply for a protection order under the Conjugal Rights (Scotland) Amendment Act 1861. (Paragraph 11.5; clause 9(2) and Sched. 2.) APPENDIX A Law Reform (Husband and Wife) (Scotland) Bill

ARRANGEMENT OF CLAUSES

Abolition of actions of breach of promise of marriage, adherence and enticement Clause 1. Promise of marriage not an enforceable obligation. 2. Actions of adherence and enticement abolished.

Abolition of miscellaneous rules relating to husband and wife 3. Curatory after marriage. 4. Abolition of husband's right to choose matrimonial home. 5. Abolition of certain rules relating to antenuptial marriage contracts. 6. Abolition of husband's remaining liability for wife's debts incurred before marriage. 7. Abolition of praepositura. 8. Abolition of husband's liability for wife's judicial expenses when neither a party nor dominus litis.

General 9. Consequential amendments and repeals. 10. Citation etc.

SCHEDULES

Schedule l-Enactments amended. Schedule 2-Enactments repealed.

DRAFT OF A BILL

Amend the law relating to husband and wife and breach of promise of marriage and for connected purposes.

E IT ENACTED by the Queen's most Excellent Majesty, by and with B the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- Law Reform (Husband and Wife) (Scotland)Bill

Abolition of actions of breach ofpromise of marriage, adherence and enticement Promise of marriage 1.-(1) No promise of marriage or agreement between two persons not anenforceable to marry one another shall have effect under the law of Scotland to obligation. create any rights or obligations; and no action for breach of any such promise or agreement may be brought in any court in Scotland, whatever the law applicable to the promise or agreement. (2) This section shall have effect in relation to any promise made or agreement entered into before it comes into force, but shall not affect any action commenced before it comes into force. EXPLANATORY NOTES

Clause 1 This clause implements Recommendation 1 of the Report. The technique used is very similar to that used in section 1 of the Law Reform (Miscellaneous Provisions) Act 1970 (which abolished actions for breach of promise in England and Wales). The first part of subsection (1) applies to promises or agreements governed by Scots law, no matter where any action based on them is raised. The reference to an action precludes any attempt to base an action on any ground other than contract or promise; and also makes clear that a promise or agreement governed by the law of another country cannot be litigated in Scotland (see paragraph 2.12). The clause is to apply to promises or agreements whenever made, unless an action has actuaily been commenced before the Act comes into force (subsection (2)). Law Reform (Husband and Wife)(Scotland)Bill

Actions of 2.-(1) No spouse shall be entitled to apply for a decree from any dherenceand court in Scotland ordaining the other spouse to adhere. enticement abolished.

(2) No person shall be liable in to any person by reason only of having induced the spouse of that person to leave or remain apart from that person. (3) This section shall not affect any action commenced before this Act comes into force. EXPLANATORY NOTES

Clause 2 Subsection (1) implements Recommendation 2. The effect is that it will no longer be possible to apply for a decree (whether on its own or along with any other remedy) ordering one spouse to adhere (i.e. live with) the other. The technique used is similar to that used in section 20 of the Matrimonial Proceedings and Property Act 1970 (which abolished petitions for restitution of conjugal rights in England and Wales).

Subsection (2) implements Recommendation 7 of an earlier Report of the Commission (Scot. Law Corn. No. 42: Report on Liability for Adultery and Enticement of a Spouse (1976): see Part IV of the Report). The technique used is similar to that in section 5 of the Law Reform (Miscellaneous Provisions) Act 1970 (which abolished liability for enticement of a spouse in England and Wales). Law Reform (Husband and Wife) (Scotland) Bill Abolition of miscellaneous rules relating to husband and wife Curatory after 3.-(1) No married person shall, by reason only of minority, be marriage. subject to the curatory of his parent or of any person appointed by his parent. (2) No wife shall, by reason only of minority, be subject to the curatory of her husband. 10& 11 Geo. 5 (3) Section 2 of the Married Women's Property (Scotland) Act c.64. 1920 (husband to be curator to his wife during her minority) is repealed. EXPLANATORY NOTES

Clause 3 This clause implements Recommendation 3.

Subsection (1) abolishes parental curatory over a married minor; subsection (2) abolishes a husband's curatory over his minor wife. Neither provision, however, confers the status of majority on a married minor: he or she will be legally in the position of a minor whose parents are dead and who has no curator. He or she will thus be free to contract, without the need for anyone else's consent, but will retain the right to have certain contracts set aside if seriously prejudicial (see paragraph 5.5). The clause does not affect other forms of curatory, e.g. that of a curator ad litem or a curator bonis. Law Reform (Husband and Wife) (Scotland) Bill

Abolition of 4. Any rule of law entitling the husband, as between husband and husband's right to wife, to determine where the matrimonial home is to be, shall cease choose matrimonial to have effect. home. EXPLANATORY NOTES

Clause 4 This clause implements Recommendation 4. The courts will still be able to deal with the question of desertion and willingness to adhere in the light of all the circumstances. Law Reform (Husband and Wife) (Scotland) Bill

Abolition of certain 5.-(1) In relation to an antenuptial contract of marriage entered rules relating to into after this Act comes into force- antenuptial marriagecontracts, (a) any rule of law enabling a woman to create an alimentary

right in her own favour in respect of any -.property- -provided by her shall cease to have effect;

(b) any rule of law whereby the marriage isonerous consideration for any provision of the contract, shall cease to have effect. (2) Nothing in paragraph (b)of subsection (1) above shall affect the operation of any enactment relating to gifts in consideration of marriage. EXPLANATORY NOTES

Clause5 Subsection (l)(a)implements Recommendation (5)(a).It will remove the sole exception to the general rule that no-one can settle his own property so as to secure an income for himself which is protected from his creditors. The word "property" is quite general and is undefined. It will cover, among other things, incorporeal property such as shares, bonds and other investments. The subsection applies only to contracts entered into after the Act comes into force.

Subsection (l)(b)removes a rule whereby a transfer of property under an antenuptial marriage contract is immune from attack by the donor's creditors as a gratuitous alienation, unless they can prove that both parties participated in a fraudulent scheme to defeat their claims. The subsection applies only to contracts entered into after the Act comes into force. It does not affect any statutory rules on gifts in consideration of marriage - for example, the rule that certain gifts in consideration of marriage are exempt from capital transfer tax (subsection (2):see paragraph 7.6). Law Reform (Husband and Wife) (Scotland)Bill

Abolition of 6.-(1) A husband shall not be liable, by reason only of being- her husband's husband, for any debts incurred by his wife before marriage. remaining liability for wife's debts (2) Subsection (l)shall have effect in relation to any such debts, incurred before whether incurred before or after this Act comes into force. marriage. 40 & 41 Vict. (3) Section 4 of the Married Women's Property (Scotland) Act c.29. 1877 (liability of husband for wife's antenuptial debts limited to amount of property received through her) is repealed. EXPLANATORY NOTES

Clause 6 This clause implements Recommendation 6. The word "debts" is used, as it appears in section 4 of the Married Women's Property (Scotland) Act 1877,which is repealed by subsection (3). (The rest of the 1877 Act is repealed by Schedule 2.) The clause is made fully retrospective, on the ground that the present rule appears to be a dead letter, and in any event a woman continues to be liable for her own debts after her marriage (see paragraph 8.2). Law Reform (Husband and Wife)(Scotland) Bill

Abolition of 7.-(1) For the purpose of determining a husband's liability for praepositura. any obligation incurred by his wife after this Act comes into force, a married woman shall not be presumed as a matter of law to have been placed by her husband in charge of his domestic affairs, and any rule of law to the contrary shall cease to have effect. (2) No warrant of inhibition or inhibition in whatever form may be granted at the instance of a husband for the purpose of cancelling his wife's authority to incur any obligation on his behalf. (3) No such inhibition granted before the date this Act comes into force shall be registered on or after that date, and any such inhibition registered before that date shall be treated as discharged on that date. EXPLANATORY NOTES

Clause 7 This clause implements Recommendation 7. It abolishes the wife's praepositura, i.e. the presumption that she is placed by her husband in charge of his domestic establishment. The clause does not affect the following rules: (i) if one spouse contracts as an agent on the other spouse's behalf, and discloses this fact, the other spouse alone is liable; (ii) if a spouse contracts as an individual, he or she alone is liable; and (iii) a person who is in charge of any establishment can be assumed to have the usual authority of a person in that position. All that subsection (1) does is to abolish the discriminatory legal rule whereby the wife is presumed to be the husband's housekeeper, whatever the couple's actual arrange- ments. As a necessary consequence the power of the husband to cancel by means of inhibition his wife's authority to incur obligations on his behalf is abolished; and all such inhibitions already registered are to be treated as discharged on the date when the Act comes into force. It will remain competent for spouses to inhibit each other from disposing of heritable property in accordance with the normal rules governing such inhibitions. Law Reform (Husbandand Wife)(Scotland) Bill

Abolition of 8. Any rule of law whereby a husband- husband's liability for wife's judicial (a) who is not a party to an action between his wife and a third expenses when party, and neither a party nor (b) who is not, in relation to that action, dominus litis, dominus litis. may nevertheless be found liable in the expenses of that action, shall cease to have effect. EXPLANATORY NOTES

Clause 8 This clause implements Recommendation 8. It abolishes the rule (sometimes called the particeps Iitis rule) whereby mere participation by a husband in litigation between his wife and a third party could render him liable for expenses. See McMillan v. Mackinlay 1926 S.C. 673; Swirles v. Isles 1930 S.C. 696. If, however, he has the true interest in the subjectmatter of the action and full control of it-i.e. he is the dominus litis-he is to continue to be liable for expenses in the same way as any other litigant. The expression dominus litis has previously been used in legislation (Legal Aid (Scotland) Act 1967,section 8(9)). Law Reform (Husband and Wife) (Scotland) Bill General Consequential 9.-(1) The enactments specified in Schedule 1 shall have effect amendments and subject to the amendments specified in that Scheduie, being amend- repeals. ments consequential to the provisions of this Act. (2) The enactments specified in Schedule 2 are repealed to the extent specified in the third column of that Schedule. EXPLANATORY NOTES Law Reform (Husband and Wife) (Scotland) Bill

Citation etc. 10.-(1) This Act may be cited as the Law Reform (Husband and Wife) (Scotland) Act 1983. (2) This Act shall come into force at the end of the period of one month beginning with the day on which it is passed. (3) This Act extends to Scotland only. EXPLANATORY NOTES Law Reform (Husband and Wife) (Scotland) Bill

SCHEDULES

Schedule 1 Section 9(l)

Enactments Amended

Court of Session (Scotland) Act 1850 (c.36) 1. In section 16 (certain enactments to apply to actions of adherence etc.), omit "actions of adherence, and".

Conjugal Rights (Scotland) Amendment Act 11361 (c.136) 2. In section 19 (interpretation), in the definition of "consistorial action", omit "and of adherence".

Sheriff Courts (Scotland) Act 1907 (c.51) 3. In section 5 (extension of jurisdiction), in subsection (2), omit "adherence and aliment". Maintenance Orders Act l950 (c.37) 4. In section 6 (jurisdiction of the sheriff in certain actions of aliment), in subsection (2), omit "an action of adherence and aliment or".

Maintenance Orders (Reciprocal Enforcement) Act 1972 (c.18) 5. In section 4 (power of sheriff to make provisional maintenance order), in subsection (2), omit "or adherence and aliment".

Matrimonial Proceedings (Polygamous Marriages) Act 1972 (c.38) 6. In section 2, in paragraph (e)of subsection (2), omit "adherence and aliment".

Civil Jurisdiction and Judgments Act 1982 (c.27) 7. In Schedule 8, in paragraph 2, in rule (5), omit "for adherence and aliment or". EXPLANATORY NOTES

Schedule 1 The amendments in this schedule are all simple deletions which are consequential on the abolition of decrees for adherence (clause 2(1)). Law Reform (husband and Wife) (Scotland) Bill

Schedule 2 Section 9(2)

Enactments Repealed

Chapter Short Title Extent of Repeal

24 & 25 Vict. Conjugal Rights (Scotland) Sections 1to 5. c.86 Amendment Act 1861. 37 & 38 Vict. Conjugal Rights (Scotland) The whole Act. c.31 Amendment Act 1874. 40 & 41 Vict. Married Women's Property The whole Act. c.29 (Scotland) Act 1877. 10& 11 Geo. 5 Married Women's Property Section 2. c.64 (Scotland) Act 1920. 6 & 7 Eliz. 2 Matrimonial Proceedings Subsection (2) of c.40 (Children) Act 1958. section 9. EXPLANATORY NOTES

Schedule 2 Conjugal Rights (Scotland) Amendment Act 1861 This repeal implements Recommendation 9, with the result that it will no longer be competent for a deserted wife to apply for a protection order. Conjugal Rights (Scotland) Amendment Act 1874 This Act is suppiementary to sections 1 to 5 of the 1861 Act and falls to be repealed along with them. Married Women's Property (Scotland) Act 1877 The repeal of section 4 (by clause 6(3)) leaves nothing of substance in the Act and allows it to be repealed entirely (see paragraph 8.4 and Recommendation 6(b)). APPENDIX B

Excerpt from Scottish Law Commission,Report on Liability for Adultery and Enticement of a Spouse (Scot. Law Com. No. 42,1976)

PART IV: DAMAGES FOR ENTICEMENT The existing law 41. In our Memorandum No. 18, we also examined the action of damages for enticement. We showed that there was considerable doubt on the question whether the action is competent under the law of Scotland. The ground of the action is not adultery, which need not be established, but simply the inducement of a spouse (whether husband or wife) to leave the other spouse. 42. While some textbook authorities in Scotland recognise the competency of an action of damages for enticement,' there are few reported cases in this field. The first is Duncan v. Cummin? where a husband sought to recover damages in an action styled an action injuriarum against his wife's father 'on account of his instigating and enticing and encouraging his daughter to desert and abandon the pursuer her husband and harbouring her in his house after she had deserted him'. The concluded view of the Court of Session does not, however, appear in the report of the case. 43. The second reported decision is Adamson v. Gillibrand3 where a husband brought an action of damages against his mother-in-law alleging that she had by illegal and improper acts and practices caused his wife to desert him and remain in desertion without good cause. The Lord Ordinary dismissed the action on the ground that the pursuer's averments were irrelevant. He took the opportunity, however, to set out a series of propositions which appear to have been derived mainly from the English authorities cited in the action. A subsequent case in the sheriff court, McGeever v. M~Farlane,~concerned the right of a wife to seek damages for the enticement of her husband. Relying on English authority, both the sheriff-substitute and the sheriff-principal accepted that a wife was entitled to damages from a woman who by artifices induced her husband to leave home and give up his wife.' While both judges accepted the competency of the claim, they held that it was irrelevant in the circumstances. 44. The position, accordingly, is that there is no recorded instance of damages being in fact awarded for enticement and no wholly satisfactory authority for the existence of this right of action in S~otland.~In England, the corresponding right of action was abolished by section 5 of the Law

'Fraser, Husband and Wife,(2nd ed.;lS78) p. 1203; Walton. Husband and Wife,(3rd ed.:1951) p. 282; Walker, Delict (1966) pp. 714-716; contrast the sceptical treatment in Clive and Wilson, Husband and Wife (1974) pp. 280-281. 2(1714) 5 Broun's Supplement 104. 31923S.L.T.328. 4(1951) 67 Sh. Ct. Rep. 48. 'Cf. Walton, Husband and Wife,(3rd ed. ;1951) p. 282. The Court of Session Act 1825, section 28 (which enumerates certain causes as appropriate for jury trial) refers to actions of damages on account of seduction or adultery but does not refer to actions of damages for enticement. Reform (Miscellaneous Provisions) Act 1970. For some time before that Act, the English courts had shown a distinct tendency to narrow the scope of the action by saying that it involved 'the deliberate break-up of marriage',7 that it did not lie against parents-in-law,' and that such actions were 'no more than legal fossils incapable of further growth beyond the point which binding precedent compels us to acknowledge that they had already rea~hed'.~They were declared by statute not to survive for the benefit of, or against, the estate of either party. Their abolition was recommended successively by the Lord Chancellor's Law Reform Committee1' and by the Law Commission for England and Wales.''

Consultation and Proposals 45. In our Memorandum No. 18, we invited comments on the question whether actions of damages for enticement should be allowed in future in Scots law. We argued that such actions are an anachronism in the present social climate and fulfil no useful purpose. They are officially discouraged, as legal aid is not available.12 They are anachronistic because they imply that one spouse has a species of proprietary right to the society of the other. They fulfil no useful purpose both because the remote chance that such an action may be raised is not a serious deterrent to a third party who wishes to persuade one spouse to leave the other and because success in the action is more likely to persuade the enticed spouse to remain apart than to rejoin the other. Such an action would be likely to increase the bitterness between those involved. They are objectionable on that account and also because there is a danger that they may be raised for reasons of mere spite. We therefore suggested provisionally in our Memorandum that the action should be declared incompetent. 46. With only one exception, all of those who submitted comments on our Memorandum, including the bodies representative of the legal profession, agreed with our provisional views that such actions should be abolished, if they exist. We therefore recommend that the action of damagesfor enticement of a spouse should be declared by statute to be incompetent (Recommendation 71 'I. 'Winchester v. Fleming [l9581 1 Q.B. 259per Devlin J. at p. 266. 'Gottlieb v. Gleiser [l9581 1Q.B. 267. 'Pritchard v. Pritchard and Sims [l9671 P. 195per Diplock L.J. at p. 209. "Eleventh Report, Cmnd. 2017. "Report on Financial Provision in Matrimonial Proceedings, Law Corn. No. 25 (1969) para. 101 and App. 11, paras. 132 and 133. "Legal Aid (Scotland) Act 1967, Sch. 1,Pt. 11. APPENDIX C

List of those who submitted written comments on Consultative Memorandum No. 54

Aberdeen University, Faculty of Law Convention of Scottish Local Authorities Edinburgh Campaign for Women's Legal and Financial Independence Equal Opportunity Law Group Faculty of Professor W. M. Gordon, Faculty of Law. Glasgow University Inverness Association of University Women Dr. R. D. Leslie, Faculty of Law, Edinburgh University Thomasina Mackay, , Inverness Scottish Convention of Women Scottish Law Agents Society Scottish Legal Action Group Scottish Marriage Guidance Council Society of Writers to H.M. Signet

Pr~ntedIn Scotland h! HMSO Press Edinburgh. Dd 07356671433h ('16 5/87 (207786)